Standing Committee B

[Mr. Eric Illsley in the Chair]

Criminal Justice Bill

Clause 126 - Purposes of sentencing

Amendment proposed [this day]: No. 516, in 
clause 126, page 73, line 15, at beginning insert 
 'Judges shall have discretion in the determination of all sentences. However,'.—[Mr. Allen.]
 Question again proposed, That the amendment be made.

Eric Illsley: I remind the Committee that with this we are discussing the following amendments:
 No. 531, in 
clause 126, page 73, line 15, leave out from beginning to 'the' in line 16 and insert 
 'In determining what sentence to pass on an offender, the court must consider all of'.
 No. 640, in 
clause 126, page 73, line 15, after 'offender', insert 
 'who is aged 18 or over'.
 No. 600, in 
clause 126, page 73, line 15, after 'must', insert 'in particular'.
 No. 63, in 
clause 126, page 73, line 22, at end insert— 
 '(f) in the case of an offender under 18 years of age, his welfare.'.
 No. 641, in 
clause 126, page 73, line 22, at end insert— 
 '(1A) Any court or youth offender panel dealing with a child who is aged under 18 at the time of conviction in respect of an offence must, in addition to having regard to section 37 of the Crime and Disorder Act 1998, have regard to the welfare of the child as a primary consideration.'.
 No. 492, in 
clause 126, page 73, line 24, leave out subsection (a).

Hilary Benn: Good afternoon, Mr. Illsley.
 I am happy to confirm that judicial independence, including judicial discretion in sentencing, albeit subject to the law as laid down by Parliament, is a bedrock of our legal system. My hon. Friend the Member for Nottingham, North (Mr. Allen) recognised that when he said that that is how it is now. I entirely agree with the sentiments behind his amendment, as do other members of the Committee, and concur that it reflects the current position as understood by the Government, the Committee and members of the judiciary. 
 I am grateful to my hon. Friend for saying that he does not propose to press his amendment to a vote. The wording, if included, might raise eyebrows among 
 members of the judiciary, who do not doubt that they have discretion on sentencing. In other quarters, it might have the opposite and unintended effect of raising doubts about other parts of appropriate legislation. Having said that, we may well return to this issue when we discuss the work of the Sentencing Guidelines Council. As my hon. Friend said, many issues relating to the operation of the council will have an impact on the relationship between Parliament, the Executive and the judiciary. His extremely helpful amendment has flagged up this issue, to which I am sure we will return. 
 The hon. Member for Southwark, North and Bermondsey (Simon Hughes), who is not here now, raised the question of the welfare of offenders under 18. Of course, we recognise that that is an important consideration in the sentencing of juveniles. However, the clause currently applies only to adults, and neither amendment No. 63 nor amendment No. 492, which would remove the age restrictions, would be appropriate. Amendment No. 641, which is similar to amendment No. 63, also falls into that category. 
 The amendments are unnecessary. We intend the clause to apply only to young people over 18, for two reasons. First, the Government are working on a Green Paper on the needs of children, which we hope to publish later in the spring. Following the outcome of that consultation, we aim to propose legislation to bring together the purposes of juvenile sentencing in a way that is similar to what we are seeking to do for adults. Secondly, I reassure the hon. Gentleman and my hon. Friend that the Children and Young Persons Act 1933 requires courts to have regard to the welfare of juveniles when sentencing, and there are also the provisions of the Crime and Disorder Act 1998. 
 Finally, the hon. Member for Hertsmere (Mr. Clappison) expressed a concern about clarity of explanation about what a sentence means. Clause 157, which we will debate later, addresses that point.

Graham Allen: With the hon. Member for Southwark, North and Bermondsey out of the Committee, there is a great temptation for me to hurry up. It is a temptation to which I will succumb. Given the Minister's kind words and open mind in agreeing to look at the matter afresh, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Graham Allen: I beg to move amendment No.61, in
clause 126, page 73, line 18, leave out from 'crime' to end of line 19.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 603, in 
clause 126, page 73, line 21, after 'of', insert 'financial'.
 No. 601, in 
clause 126, page 73, line 21, after 'to', insert 'the community and'.
 No. 532, in 
clause 126, page 73, line 21, after 'persons', insert 'and communities'.
 No. 62, in 
clause 126, page 73, line 22, at end insert— 
 '(e) the reform and rehabilitation of offenders'.
 No. 602, in 
clause 126, page 73, line 22, at end insert— 
 '(e) public confidence, and the prevalence of the offence in question in the locality'.
 No. 667, in 
clause 126, page 73, line 22, at end insert— 
 '(e) to assist with the treatment, reintegration and rehabilitation of offenders.'.

Graham Allen: I welcome you to the Chair, Mr. Illsley.
 Clause 126 refers to purposes of sentencing, and subsection 1(b) refers to one of those purposes being the reduction of crime, which is something we all support. It becomes unnecessarily complicated when it refers to its reduction by deterrence, and the reform and rehabilitation of offenders. Both those ideas are important. I would argue—and I ask the Minister to consider this—that in view of some of the amendments to come from all points of the Committee, rehabilitation should stand alone as a criterion under which a discussion of sentencing should take place. 
 The question is a philosophical one that could take up another full sitting—I hope that it does not. People referred earlier to their own values concerning crime and punishment, which may come from a Christian, liberal, socialist or Conservative point of view. Many ideologies refer to rehabilitation making people better. Given the crisis in our prison system, I feel that what we are currently doing is not working. One of my themes later will be to draw a distinction in the Prison Service between containment of offenders who must be put away for public safety reasons and rehabilitation. Rehabilitation of offenders, where practicable, is the best crime prevention measure there is. We should seize that opportunity. 
 I have views about all criminal law. As a green Member of Parliament, within about two weeks of arriving in this place, an horrendous case of sexual abuse was brought to my attention. I was heavily involved in sorting out the problems associated with that multi-generational case. Some of the children involved had received appalling treatment. We all feel anger about any criminal act that comes to our attention, and I felt anger about those wasted lives. I came to an understanding that some people are heroic in their ability to resist the treatment meted out to them as children, but sadly some cannot overcome it, and in turn become abusers and perpetrators. It is important to intervene early and ensure some form of rehabilitation of such individuals before they can become abusers. That had a profound effect on me as a young Member of Parliament. If we can stop crime being committed, it will relieve the courts, and the many citizens who suffer from the activities of criminals. Given the current crisis in criminal justice and our prisons, rehabilitation is extremely important. 
 I shall return to those points later, but for now I shall not press the amendment to a vote. I am sure that the Minister will express sympathy with the concept of rehabilitation. I know from my correspondence with him how much he cares about this part of his ministerial responsibility, so I ask only that he 
 considers re-examining the drafting to see whether he can send the signal to the community at large and those in the criminal justice system that rehabilitation has as much priority as any of the other items mentioned in the list. If he looks at that with an open mind, we may be able to build on Report or in another place a serious foundation in the criteria for the purposes of sentencing that includes rehabilitation exclusively.

Humfrey Malins: I will speak to amendments Nos. 603, 601 and 602.
 We are still discussing the important clause on the purposes of sentencing. Amendment No. 603 is a probing amendment designed to draw from the Minister confirmation about subsection (1)(d) on 
''the making of reparation by offenders to persons affected by their offences.''
 The amendment would require financial reparation. I think that clause 126 envisages convicted defendants having as one purpose of punishment not only the need to perform community work or be involved in restorative justice that we heard about earlier—a face-to-face discussion and apology—but the issue of financial compensation. However, that is not spelled out, and I would like confirmation that all those matters are encompassed by the word ''reparation''. 
 I should say in passing that currently if a court does not award compensation in a case, it has to say on the register why it has not. There is an increasing tendency to award compensation, particularly in the assault cases that regularly come before the courts. Many courts find the process of inquiry into the defendant's means before making a compensation order difficult and lengthy, and it is all too easy for magistrates and district judges to say, as they sometimes do if the defendant is on benefits, that they will make no compensation order because the position is too complicated or the matter would be better handled in a civil court or by the Criminal Injuries Compensation Authority. By saying that, judges often mean, ''I've got a busy list and I must move on to the next case.'' It would be helpful for the Government to draft new measures to make it simpler for a magistrate or district judge quickly to get the court's hands on a defendant's assets—for example, a car—to ensure a payment from the defendant to the victim. 
 I applaud work that has been done on restorative justice. I have not recently come across a case in which a community punishment order—what used to be the community service order—involved working for the loser. Some losers like that; some do not. It is an area that needs examining and perhaps strengthening, and the Minister will probably confirm that all reparations, including financial, are envisaged in the clause. 
 My amendment No. 601 refers to ''the community'' and would ensure that offenders make reparations to the community as well as to those directly affected by their offences. A defendant is often told, when he is sent to prison, ''You have committed a series of offences. Now you are going to pay your debt to society.'' That is a standard sentencing phrase. Of course, defendants do, in a sense, have a real debt to 
 pay to society at large, and the community at large, for their offence. It is not a big point, but I wonder whether a reference to the community and society, with respect to the purpose of punishment, should be included somewhere in the clause. 
 Amendment No. 602 would insert a new paragraph (e) into subsection (1), detailing a further purpose of sentencing to which the court should have regard. It would have to take into account the restoration of public confidence and the prevalence of the offence in the locality in question. My hon. Friend the Member for Witney (Mr. Cameron) mentioned earlier how vital it is that public confidence in the criminal justice system should be preserved and maintained. He is right, and perhaps the amendment could help in that process. 
 It is very important that courts should take into account the issue of the prevalence of a crime in a community. Judges and magistrates often pass much harder sentences than would otherwise have been the case because they want to ''stamp out'' a particular offence in their community. For example, in the King's Cross area of London a tremendous number of minor drug offences are committed, of which a harsh view is taken. Indeed, different courts around London have different sentencing practices, depending on the prevalence of a particular offence there. 
 In Covent Garden there is a lot of pickpocketing. Mobile phone theft is particularly prevalent in some areas of London. Another issue is cleaning up the streets. The offence of being a common prostitute—something that I regard as pretty trivial, which clogs up the courts unnecessarily and produces absurd problems for sentencers—is nevertheless prevalent in some parts of London, and causes offence. It is a rarity in parts of the countryside, for obvious reasons. Magistrates would be amazed by a prostitute touting for hire in West street, Dorking, but it is par for the course, on the other hand, on the Commercial road. 
 Courts need the flexibility to be able to say, ''We are going for this offence, because it is very hot in our area, and we want to drive it out.'' Perhaps, therefore, there is an argument for including in the purposes of sentencing—in addition to the restoration and maintenance of public confidence in the system—the provision of the necessary flexibility to deal with the prevalence of an offence in any area, which results in the need for the relevant courts to stamp it out and to sentence accordingly.

David Kidney: The hon. Gentleman will remember that this morning I raised a question about statutory sentencing purposes to which judges, but not the Sentencing Guidelines Council, will have regard. Is he aware that one of the matters to which the Sentencing Guidelines Council will have regard is the promotion of public confidence? I am still unsure about the relationship between the two matters.

Humfrey Malins: I take the hon. Gentleman's point, but in a sense he is returning to the issue that we discussed this morning on a different group of amendments: should a list of the purposes of sentencing in the clause
 be longer or shorter, and has everything been included?
 The last example of a prevalent offence is retail crime—theft from shops—which is dramatically increasing in many parts of the country. 
 I hope that I have given the Minister food for thought. My amendments are intended to be no more than probing amendments.

Simon Hughes: I will speak mainly about amendments Nos. 532 and 667. The first has been touched on. We had a debate this morning about whether we should have purposes or principles or both. If we are seeking to have a definition of purposes, a couple of the examples given this morning—vandalism to a statue, the theft of an osprey egg—offer good illustrations that the case for having restoration to communities is well made: people would frequently understand that something was being done for the community or the neighbourhood, such as putting money back into the kitty.
 Amendment No. 603 proposes that reparation should be financial. There is a case for that, but we now accept that there are wider ways of offering reparation than merely the financial way. There is a debate to be had about that. Many of us believe that because the fine system has been inadequately followed up it is now inadequately used. We often do not use financial penalties when we should—that applies to financial reparation, among other things. However, there are things that are not financial, such as the community activity that has been mentioned, and I support that as a way forward. 
 The hon. Member for Nottingham, North properly sought to have part 2 of the debate that we had this morning about the definition. It was suggested that if we are to have a purposes list, the first four purposes of sentencing should be punishment, reduction of crime, protection of the public and making of reparation, and that reform and rehabilitation of offenders and public confidence should be added at the end. I prefer the wider list to the shorter one: it is clearer to move that long grouping of things under paragraph (b), and to break that up as we discussed earlier. 
 Amendment No. 667 is a variation on the same theme. It offers an alternative way to assist with the treatment, reintegration and rehabilitation of offenders. I wish to refer again to the work of Mr. Halliday, because there are a couple of interesting points to be made about why the Government did not accept his recommendations in an area where they would have done better to do so. In the section on the case for change, Halliday refers to the fact that the law was amended in 1991 in legislation setting out sentencing principles—and, therefore, sometimes sentencing frameworks, although on the whole I prefer principles. Mr. Halliday and others sometimes talk about the goals for sentencing, and now we have moved on to purposes, but we should try to keep the concepts clear. 
 I do not pretend to be an expert about this; I am merely retailing the common view that emerges from everything that I have read, which is that the 1991 
 legislation did not achieve its objective. It intended to set out a framework that would produce more alternatives to imprisonment as sentencing outcomes. However, chapter 1.34 of the ''case for change'' section of the Halliday report states: 
''The Criminal Justice Act 1991 was interpreted by the courts in ways that had not been predicted or expected. In fact, the 'just deserts' approach failed to take root, because deterrence was soon reinstated as an aim of sentencing. This was compounded by the Act's failure to deal satisfactorily with the relevance of previous convictions.''
 Chapter 1.36 states: 
''An attempt in the early 1990s to construct a new framework for sentencing failed, rapidly, to achieve its purpose. Substantial further erosion has taken place since, yet no new vision has been put in place of the original. The result is a muddle, which is not good for consistency, public understanding, or a sense of common purpose amongst the various agencies involved in sentencing. Practitioners complain bitterly about the consequent complexities and inconsistencies, which they feel are a drag on efficiency as well as effectiveness. It is only because of their ingenuity and application that the results are not worse.''
 If anyone asked how sentencing was supposed to work, they would be pointed in the direction of a massive volume of statutes, most of which amend each other, and to an equally large volume of case law that is conveniently set out in the three-volume encyclopaedia edited by Dr. David Thomas. In addition, the inquirer would be directed to the magistrates court sentencing guidelines. Nevertheless, the framework is still relatively inaccessible. 
 If we are trying to get purposes, principles and guidelines sorted, I would make a plea for that to be done in one piece of legislation that refers to how guidelines will be used. The hon. Member for Nottingham, North and the Liberal Democrats believe that the list should be amended. We should, however, be clear about whether we are setting out goals, purposes or principles, or—as I suggested and think is right—whether we could have all of those. If we talk about sentencing principles in respect of subsequent clauses, or about practice or framework—call it what one will, although I believe that the word ''principles'' is better—we should say that that is what we are doing and we should set them up clearly, so that we know where we are going.

Stephen Hesford: Does the hon. Gentleman not accept that deterrence is a proper part of the framework?

Simon Hughes: That is one of the proper purposes of sentencing. In their judgments and in sentencing, judges—including district judges—will often say things like, ''We are going to give you a particularly high penalty because we are determined to try to stop other people doing this and to stamp it out.'' Further to that, I refer the hon. Gentleman to the case made by the hon. Member for Woking (Mr. Malins). Deterrence is perfectly proper when it is used in the hope that the message gets out to the community that gun crime, prostitution, or whatever is not attractive an proposition in that part of the world. Deterrence may not solve the problem nationally—in fact, the problem may move somewhere else—but it is perfectly proper.
 The current list refers to punishment, reduction of crime, protection of the public and the making of reparation, all of which are proper purposes. Amendment No. 602 would add public confidence and the prevalence of the offence, and amendment No. 667 would add treatment, reintegration and rehabilitation. Those are all perfectly proper purposes for sentencing. 
 We must consider carefully the rest of Mr. Halliday's analysis and his conclusion. He discussed whether the guidelines having been changed had resulted in different behaviour. I will not read out the report in detail, because people can read it for themselves, and I refer hon. Members back to the document, as the Minister did earlier. Mr. Halliday sets out clearly the evidence that he collected, which shows that frameworks do not necessarily produce the outcomes for which people would wish. 
 I shall cite two examples from Professor Ashworth's advice on behalf of Justice, in which he puts his case clearly. He says: 
''In the White Paper and on second reading much praise was lavished on the Halliday report for preparing the ground for these major sentencing reforms. The government has failed to explain why it diverged from Halliday's proposal that the primary rationale for sentencing should be proportionality to the seriousness of the crime, which is a modified version of that stated in the current law (but never applied faithfully by the courts).''
 Thus, Halliday argued for the 1991 Act to be clarified and for that to be applied in the courts. 
 Professor Ashworth then says: 
''This Government has often trumpeted the importance of evidence-led penal policies, but the evidence for the effectiveness''—
 this relates to the question asked by the hon. Member for Wirral, West (Stephen Hesford)— 
''of general deterrent sentencing was examined by a team from Cambridge University at the instigation of the Home Office, and it found insufficient evidence that increases in the severity of sentences (as distinct from the risk of detection) had a significant effect on law-breaking.''
 That research—not mine—showed that increasing risk of being caught was more important than increasing severity of sentences.

Stephen Hesford: That is why I raised the question a few moments ago. I am unsure where this line of argument goes. With respect, the hon. Gentleman seems to be arguing against deterrence.

Simon Hughes: I argued that the purpose of deterrence was fine, but making it into a principle is no good if it does not work. I argued this morning that we should separate the two ideas. It is perfectly proper to view the purpose of sentencing as deterring crime, but going through the mechanism of working out what sentence to pass with deterrence in mind may not be effective. Guidance about priorities is necessary and I refer the hon. Gentleman to the work done in response to the Bill, which appears to back that up.
 The Halliday report noted various findings and pointed to the weakness of the evidence in favour of the incapacitative effect of sentencing. Halliday proposed that neither deterrence nor incapacitation should be relied on as a justification for sentencing. [Interruption.] If the hon. Gentleman will bear with me, before we put certain components in or out of the list, 
 we must be clear about their purpose and sure that they will work. If we are going to apply principles of sentencing, we must analyse the evidence that they will work in practice. Deterrence may be a good purpose, but not necessarily a good sentencing principle, because it may not work well in practice.

Dominic Grieve: The hon. Gentleman raises an interesting issue, but his stand goes too far. We have ample evidence that some offences, most obviously drink driving, have been reduced substantially by deterrent sentences. Conversely, the sentences heaped up over the years for drug importation appear to have had no deterrent effect whatever. I understand his point, but he is taking too absolutist a stance: deterrence can work in certain cases, so attempting to eliminate it would be a mistake.

Simon Hughes: I understand the hon. Gentleman's intervention, but I am not adopting an absolutist viewpoint. I said that it is reasonable to retain deterrence as one of the purposes of sentencing, but I referred to Halliday's evidence suggesting that deterrence is much less effective than many people believe. It is the same as locking people up, which keeps them out of the frame, but many prisoners reoffend and return to jail.
 The right message can have some effect, as certain cases show. The argument about mobile phone theft and burglary is important: the message has an indirect, if not a direct, effect. In framing a set of principles, I ask only that we put proportionality—that the punishment should be appropriate to the crime—at the head of the list. Punishment can be increased to send out a message, but I conclude that deterrence is more a principle than an effective proposal. 
 I hope that by the end of the debate—here or in another place—it is accepted that the concepts should be separated, that the advice of Halliday, Ashworth and others should be followed, and that the provisions should be in one statute rather than spread over various statutes from 1991 to 2003, requiring cross-reference to obtain the requisite advice.

Paul Stinchcombe: Is not proportionality inherent in clause 127, whereby the court must determine the seriousness of the offence?

Simon Hughes: Proportionality is there, and I have said before that clauses 126 and 127 are linked. I have been guided by people who have done more comparative studies of other countries and jurisdictions than me. It would be clearest for the public, to whom the hon. Member for Hertsmere referred, the courts and defendants if people knew the purposes and principles—we have not done this before and I accept that it is good idea—as well as the priority order in which we would ask the courts to apply them, in which case proportionality would be top of the priority list.
 Proportionality is included indirectly and is not in lights because it is referred to as the first of the characteristics. Later on, there is another characteristic, which is that one's offence will be 
 reduced if one pleads guilty. A further characteristic is that if one's offence is racial or religious, it is likely to be aggravated. There is an argument for putting all that under the generic headline, ''Proportionality''. The hon. Member for Nottingham, North pleaded for us to come to the issue having read and listened to the arguments. We must try to get into law what we intend to be law. We must say what we mean to say and listen to each other to arrive at something clear that gives the courts the best guidance. If we are not clear when we finish legislating, we cannot expect the courts to act in accordance with our wishes.

Dominic Grieve: I want to make two points arising from what my hon. Friend the Member for Woking said.
 First, I want to address the definition of the making of reparation by offenders to persons affected by their offences. It would be helpful if the Minister confirmed that he reads that as financial and other reparations to the general community. The amendment is probing, but it covers an important point. A layman reading the phrase on its own would think that it referred to a reparation to the individual who had been directly disadvantaged by the offence, whereas—this point was well made in an earlier debate—there are circumstances in which a crime is perpetrated against the general interests of the community but not against the interests of a particular individual. We want to be reassured that that matter is properly covered. 
 The second important issue referred to by my hon. Friend raises a number of other significant points. The amendment refers to 
''public confidence, and the prevalence of the offence in question in the locality''.
 We shall consider the sentencing provisions, and one point for the Sentencing Guidelines Council—the hon. Member for Stafford (Mr. Kidney) has alluded to it—is the need to promote consistency in sentencing. 
 My hon. Friend the Member for Woking made the very good point that most people would think it inconsistent for a judge or lay member of the bench in Newcastle to impose fines for theft while the same crimes led to people being imprisoned in London. Such things are often commented on in the newspapers to suggest inconsistencies in sentencing. My hon. Friend is right, because justice must respond to the needs of a locality. It is perfectly legitimate for there to be differential sentencing practices in different places if they reflect the priorities of judges in those places in trying to deal with particular crimes. 
 As the clause stands—I should be interested to hear the Minister's views on this—it may cause difficulty. The wording of clause 153 might suggest that general rules in relation to deterrence and reduction were considered nationwide, rather than on a basis relating to a locality. In short, have we made enough allowances in drafting to encourage sentencing inconsistencies if those are justified by deterrent needs where the crime arises? That is an important issue and we must ensure that we do what we intend. 
 There are some who argue that such differential sentencing is wrong. I can understand that point of view, but it does not meet the needs of different areas. The awful truth of sentencing practice is that it can 
 sometimes be summarised in three stages: when a new offence appears on the scene, it is treated lightly; when it becomes prevalent, it is treated harshly; and when it becomes terribly widespread, it reverts to being treated lightly, as people have given up on it having any deterrent impact whatever. Different places might be at different stages in that process at any given moment. That is the human reality of the justice system. As drafted, the provisions might allow for those variations, but I detect a desire to achieve consistency in sentencing. That shines through Halliday as well. 
 Inconsistent sentencing that cannot be justified is plainly wrong, but there are occasions on which inconsistency can plainly be justified. I want to ensure that the drafting allows for that and that we do not end up with those of my profession saying to the judge, ''You can't do that, because although it may be within the guideline tariff, here are other sentences that are being passed in the next town 15 miles down the road that are different.'' Those points will be made to the Court of Appeal, and we should be alive to the possibility of that becoming a problem. I look to a response from the Minister on that.

Hilary Benn: May I deal first with the point that my hon. Friend the Member for Nottingham, North made in moving the amendment on dealing with possible offenders before they commit an offence? One might call that preventative rehabilitation, to coin a phrase. I agree with him entirely. That wish, which the Government subscribe to and which my hon. Friend, I hope, finds reflected in many of our policies, is outwith the purposes of the clause, which deals with purposes of sentencing when somebody has committed an offence. I take my hon. Friend's point, but it falls outside the scope of the clause.

Graham Allen: I would hate my hon. Friend the Minister to run away with the idea that that is the entirety of my point. Rehabilitation, rather than what one might call ''habilitation'', occurs with people who have offended at least once.

Hilary Benn: I accept that point entirely, and I was about to come to the substance of the amendments, which propose the separation of reform and rehabilitation. I tell my hon. Friend that I am not persuaded, simply because the sentiments of what he argued for are clearly set out in a concentrated and spare form in the clause. I understand the argument of those who would like to separate the purposes and have a longer list, but to all intents and purposes the outcome would be exactly the same.

Paul Stinchcombe: I wonder whether the Minister's answer to my hon. Friend the Member for Nottingham, North is sufficient. Reforming and rehabilitating offenders is surely a separate purpose of sentencing policy, not only because one is thereby reducing crime, but because one is reforming the man.

Hilary Benn: I hear the argument, but the purpose of rehabilitation is to ensure that the person does not do it again, and ensuring that a person does not reoffend serves to reduce crime. There may be a
 presentational argument about the precise wording, but the most important thing is that the sentiments, which all members of the Committee share, are clearly set out in clause 126. The reduction of crime is the wider aim achieved through sentences that contain requirements to reform and rehabilitate offenders. Sentences can also deter those who have been sentenced from reoffending and make those who may be considering crime think twice. Both deterring and rehabilitating offenders lead to a reduction in reoffending and therefore to a reduction in crime.

Graham Allen: I have already given away my weapon of mass destruction to the Minister by agreeing not press the amendment to a vote, but, to speed the Committee's progress, I did not make at length the argument that my hon. Friend the Member for Wellingborough referred to. The moral, ethical and political dimensions of rehabilitation are extremely important and distinct from the provisions in clause 126(1)(b). That may be a subject in which their lordships are more expert than even we on the Committee. I hope that the Minister allows that door to be opened so that we can express in the Bill our real sentiments, which, having corresponded with him and with many other Ministers, I know he shares. I hope that we do not close the door on a proposition that makes it clear that we are—I will not use the phrase ''tough on crime and tough on the causes of crime''—anxious to prevent offenders from reoffending wherever possible.

Hilary Benn: I am sure that their lordships will have heard my hon. Friend's point. It is not my wont to close doors, and any door that I seek to close will, I am sure, be wedged wide open by their lordships, if they are so inclined.
 On amendments Nos. 532 and 601, let me offer the assurance—this is a drafting matter—that Members are looking for that ''persons'' in subsection (1)(d) covers the individual victim and the wider community. I also assure the Committee that ''reparation'' in the same provision covers financial and other forms of reparation, which both have a part to play.

Lady Hermon: May I add a note of caution by referring to the experience in another jurisdiction? In the past few weeks in the Republic of Ireland, a prominent public figure was found guilty of downloading child pornography from the internet. Instead of receiving a custodial sentence, that person was ordered by the court to make substantial reparation by means of a donation to a children's charity of his choosing. There was outrage that a prominent person with access to significant funds could buy himself out of a custodial sentence.

Hilary Benn: I am grateful to the hon. Lady, although I am not aware of the case to which she refers. Courts must consider many issues when deciding on an appropriate sentence, and there are circumstances in which reparation is appropriate. I agree that reparation should not be confined to those with the means to make financial reparation, which is precisely why the wording is intended to cover other forms. In an earlier debate, I think that the Committee
 agreed on the appropriate reparation in the case of the osprey eggs.
 Finally, an important point was raised on amendment No. 602, to which the hon. Members for Woking and for Beaconsfield (Mr. Grieve) spoke. I agree that sentencing and the framework in which it operates must merit public confidence, but let us be honest about the fact that the relationship between the two is complex. That is partly for the reasons given by the hon. Member for Woking, who referred to the low level of public understanding of sentencing and the fact that people often believe sentences to be more lenient than they are. We must do more to improve public understanding, and we are at one on that. 
 However, involving public confidence or the prevalence of offending in a locality with specific purposes of the Bill could lead to inconsistent sentencing in different parts of the country. I hope that the hon. Member for Beaconsfield is reassured when I say that nothing in it would prevent well-justified local variation. The hon. Member for Woking has experience of these matters and gave good examples of the prevalence of offences in local areas. He made a good point, but we must be careful to get the balance right. 
 The clause does not refer to public confidence in relation to the purposes of sentencing in individual cases. As has been noted, however, there is a reference to public confidence, and responsibility in that respect will fall on the Sentencing Guidelines Council. One envisages that it will produce a range of guidelines and that other circumstances and considerations could be taken into account. That might allow a well-justified local variation to be considered when the guidelines are applied.

Paul Stinchcombe: I shall speak briefly in support of amendment No. 62, which would establish the reform and rehabilitation of offenders as a separate purpose of sentencing, as a member of the Prison Reform Trust board of trustees.
 I support the amendment for the simple reason that we have a golden opportunity expressly to say that it should be a separate and distinct purpose of sentencing to reform ruined lives and rehabilitate the ruined persons who are our criminals. I want us to do that not just because it would reduce crime, although that is a laudable objective in itself, but because it is a distinct political and moral objective of mine to intervene in the lives of people who have perpetrated crime and to try to reform them. In that way, victims would be freed from the effects of other people's criminal propensities, and criminals would be able to go on to lead decent lives, free from the addiction and dysfunction that led them into crime in the first place. If the clause gives us the chance to say that that is a separate and distinct objective that is laudable in its own right, we should so do.

Graham Allen: I would have liked to press amendments Nos. 61 and 62 to a vote, but one cannot always do what one likes. None the less, I hope that the Minister has heard the debate. He certainly responded fully. The subject is dear to the hearts of many Members from all parties. For professional reasons, that is true
 not least of the hon. Member for Woking. I am sure that he would rather not see a lot of these characters coming back before him when he sits on the bench. The issue needs to be looked at again, but, to facilitate the Committee's proceedings, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Simon Hughes: I beg to move amendment No. 704, in
clause 126, page 73, line 22, at end insert— 
 '(1A) Any court dealing with an offender in respect of his offence must also have regard to the presumption that where there is a reasonable alternative, taking into account the factors outlined in subsection (1), a custodial sentence should only be imposed as a last resort.'.
 The amendment would insert a new subsection at the end of clause 126. In effect, it meets head on the question of when people should be sent to custody and follows logically and relevantly from the point made in the previous debate by the hon. Member for Wellingborough (Mr. Stinchcombe), which I did not endorse again as I had made it before. 
 I hope that the Minister buys the argument, which was made by the hon. Members for Wellingborough and for Nottingham, North and by me, on putting rehabilitation on a different footing. A piece of evidence on that matter is that we do not generally serve people well by sending them to prison or into custody if there is an alternative. I am conscious that that will come up again and that clause 135 is headed: 
''General restrictions on imposing discretionary custodial sentences''.
 On some occasions, there is a fixed penalty, and so no choice. We have discussed that. For the time being, fixed penalties and fixed custodial periods will remain, but my amendment would apply where there is a discretion. 
 Clause 135 will require a court not to 
''pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.''
 That requires the court to examine custody when it has ruled out justification for a fine or community sentence. I am trying to include somewhere in our sentencing law in England and Wales the presumption that, where there is a reasonable alternative, custodial sentences should be imposed only as a last resort. 
 I want to do that not only because some people, such as me, want to keep people out of prison as far as possible, but because there is unhappy evidence that although we intended the 1991 legislation to reduce the numbers going to prison, it has had the reverse consequence.

Stephen Hesford: Will the hon. Gentleman accept the following two points? First, if his proposed sub-paragraph were inserted, there would be a presumption in all cases that a reasonable alternative to custody must be taken into account and that a custodial sentence should be imposed only as a last resort. That would be positively harmful to public confidence in the system and, for many people, an affront to a sense of justice. That is why there is a
 presumption in favour of custody in cases of serious crime. That should remain.
 Secondly, the hon. Gentleman is arguing against himself. One must bear in mind clauses 127 and 136, which take his point into account.

Simon Hughes: I shall deal with the latter point first. I have referred to clause 135, which goes with clause 136. Earlier, I referred to the way in which we establish how serious an offence is, but that will be debated under clause 127, on which we have not yet had a detailed debate.
 I should say now that I am not proposing to press amendment No 704 to a vote. I want a peg on which to hang the debate. I have two views that are, I hope consistent. One is in the amendment, and it is that we should look for a reasonable alternative to custody. I do not pretend that the amendment is perfectly phrased, but it includes the words 
''where there is a reasonable alternative, taking into account the factors outlined in subsection (1)'',
 so punishment, reduction of crime, protection of the public and the other matters that we debated earlier would have to be taken into account. The court might conclude that, taking those things into account, a non-custodial alternative is not reasonable. 
 May I tell the hon. Gentleman my other view on the matter? Depending on how the debate goes, I may wish to look for cross-party support for a proposal based on this idea on Report. I take a strong view, which becomes stronger as the years go by, that there is all the difference in the world between violent offences against people and property offences; offences against people are always more serious. Therefore, in a case of violence against a person, the presumption should be that the perpetrator will receive a custodial sentence, whereas in the case of a property offence, the presumption should be that he will not receive such a sentence. That is the starting point. 
 There are three exceptions to the presumption that there is a non-custodial alternative: first, when there is interference with the course of justice, which is so serious that a person guilty of it should expect to go to prison for it; secondly, when it is an offence connected with children, especially child pornography, when society's disapprobation is so strong that the person should expect to go away for that, too; thirdly, bad, careless or reckless driving that causes injury or death. That crime is under-recognised in the criminal justice system. It would be helpful to have principles that presume custody or do not. Thus the presumption of custody would apply to a person who went out carrying a knife or a gun because it would be presumed that it was carried with a violent intent.

Stephen Hesford: But that is my point. The new clause does not make that clear and precludes that approach. That is it because it includes all offences.

Simon Hughes: It is the first step down that road. The hon. Gentleman rightly pushes me to elaborate on it, and I have done so. We must always consider the
 reasonable alternative, but for violence the presumption would be that there was not a reasonable alternative.

David Cameron: I am grateful to the hon. Gentleman for giving way. Sometimes, finding out what is Liberal Democrat policy can be rather like hunting the snark. However, in this instance we have had a treat. Does not the hon. Gentleman understand that people see burglary as crime against the person, not just against the property, especially if the victim is in the house when it is burgled? It is deeply invasive. Is the hon. Gentleman really saying that in every case involving someone with very many previous convictions and an inclination to burgle, the assumption must be against custody? That is mad.

Simon Hughes: I shall answer that question directly. There is a difference, and I will happily send the hon. Gentleman our statement on these issues so that he does not have to wait until consideration in Committee to know our policy. We discussed the matter at length, as I am sure the hon. Gentleman's party has done, and divided the subject into burglary of commercial property and property where no one is present, and aggravated burglary, when someone is present and is threatened or there is a risk of their being threatened, which would mean that it is violence against the person. In domestic burglary, when people are in the property, the presumption would favour custody. I agree with the hon. Gentleman; there is a difference between domestic burglary and the burglary of a garage or commercial premises, perhaps at night when no one is there. However, it is different when there are cumulative offences. There is a difference between a starting point and a consequence.
 There are two reasons why alternatives to custody should be where we start, if that is a reasonable option. First, the 1991 Act clearly led us in the wrong direction. The White Paper that preceded it—it was the parallel to the Halliday report and the White Paper preceding the Bill—said that imprisonment was socially damaging. It said: 
''The Act takes forward this policy by introducing further provision to ensure that sentences of imprisonment are used primarily for those who have committed the most serious offences, especially violent or sexual crimes.''
 The paper anticipated a reduction in the proportion of short-sentence, non-violent prisoners as a result. What followed the 1991 Act was an extraordinary increase in the use of prison and of the number of community penalties for people who previously had fines and suspended sentences. In magistrates courts, the proportion of cases resulting in a sentence of immediate imprisonment rose from 6 per cent. in 1993 to 14 per cent. in 2000. In the Crown court the figures rose from 49 per cent. in 1993 to 63 per cent. in 2000. Given that the prison population has risen in the same period, from 42,000 in 1993 to 73,000 today, the 1991 Act did not achieve its aims. 
 Two lessons can be drawn from that experience: first, the 1991 Act could have been drafted more tightly to restrain the general rise in custody rates and the length of sentences; secondly, whatever is set out in the principles does not affect the outcome if the messages to the courts mean that there is a punitive 
 response in respect of sentences. That is why the proportionality argument and the argument against custody are so strong. 
 The number of people sentenced for shoplifting—stealing from shops or stores—under the Theft Acts has risen considerably in the past five years. Government figures show that between 1996 and 2000, the number of men sentenced to immediate custody for shoplifting increased from 4,334 to 11,678 in 2000; the number of women sentenced to immediate custody increased from 907 to 2,348 in 2000. It is extraordinary that we send more than 13,500 people to prison for shoplifting when five years ago we sent less than half that number. I cannot believe that things in society have changed so much in that time that it justifies that response. If it had happened in one year, there would have been a national outcry about the change; it would have been regarded as bizarre, extraordinary and so on. That it is spread over slightly longer reduces the sense of disbelief at what is happening. 
 Unless we are clear that we should not send people to prison if there is a reasonable alternative, we will sleepwalk into more and more expensive, ineffective and unwarranted dependence on custody. The chief inspector of probation has recently reported that the reason the Probation Service is struggling so much to cope with its work load is due to it being silted up with lots of low-level custodial sentences and low-risk offenders who should have been dealt with by other means, especially by fines. In respect of unintentional outcomes, the right hon. Member for West Dorset (Mr. Letwin) often says that because of the way we deal with their criminality we allow young people to get on the conveyor belt to crime. The danger is that for many people it will be an escalator to prison unless we are very careful about putting down the non-custodial alternative as a presumption. 
 There is no more severe sentence in the criminal justice system than to send someone to prison. There is no greater punishment, just longer spent in prison. If we go down that road, more people will be in prison for longer and the evidence is that that does not reduce the chance of reoffending, rehabilitation or the reduction of crime. The only time these people are not committing a crime is when they are inside. When they come out, they are highly likely to reoffend; we know what the reoffending rates are. I hope that there will be some affirmation of the desirability of avoiding prison wherever possible, which should be built into the system of sentencing.

Humfrey Malins: I must tell the hon. Gentleman that it is built into the system anyway. That is practice. The law is clear: a custodial sentence cannot be imposed unless the offence is so serious that only such a sentence can be justified. The hon. Gentleman is going down the wrong road. Courts strive heavily not to use custody, even now.

Simon Hughes: That is true, but the present principles under which courts work are set out in the 1991 Act, which clearly have not worked because the numbers of those in prison have more than doubled. The numbers in certain categories have more than doubled. There was more crime until halfway through
 the period between 1991 and the present, but in the past five years there has been less crime. Crime has decreased significantly—not in every category—so it is not logical that the number of people going to prison goes up and up.
 I support the Government when they argue that crime is decreasing according to the statistics based on the British crime survey. I say to the hon. Member for Woking that I am only arguing that the matter should be debated at this point in the Bill because it is where we set out our stall—our principles, the guidelines, the goals and the objectives.

David Cameron: When my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) became Home Secretary, he made a statement that encouraged the courts to think that if they thought that custody was the best option, they should go for it. From 1994 to 1995, the prison population rose, especially for crimes such as burglary—a premeditated crime—and the crime rate started to fall for the first time in 20 years. Does the hon. Member for Southwark, North and Bermondsey think that there is no connection between that increase in the use of custody and the fall in the crime rate?

Simon Hughes: No, I do not think that there is no connection. There may well be a connection, but the hon. Gentleman will accept that the ''prison works'' philosophy and policy of the right hon. and learned Member for Folkestone and Hythe would have to be measured over a longer period to ascertain how effective it was. It is unarguably the case that according to all the figures, crime increased after that decrease before there were any significant changes to that policy under a new Home Secretary. According to the British crime survey, crime has decreased for the bulk of the past few years, with the exception of certain categories. There is a link, but it is not necessarily a direct one, and we should be careful when looking at short-term trends.
 I hope that we can establish what the hon. Member for Woking describes as the practice and principle of the courts and put it in lights to establish the purpose of the clause. That starting proposition—one of two as the hon. Member for Nottingham, North pointed out—is the right way to proceed, and it should be put forward to determine whether the Government are willing to sign up to a redefinition because the 1991 definition has not worked.

Hilary Benn: The hon. Member for Southwark, North and Bermondsey raised some important points. He anticipated my answer early on when he drew attention to clauses 135 and 136, which set out precisely the argument he advanced: consideration should be given in deciding on the appropriate sentence. Those clauses make clear that custody should be the last resort when the offence is of sufficient seriousness to merit it, and when the options of a fine or community sentence have been discounted. First, I resist the amendment on the ground that we have already covered that point. Secondly, it does not fit with the general purposes of sentencing, which we have discussed at considerable length while considering the clause. It is more appropriate to
 other parts of the Bill, and it arises in clauses 135 and 136.

Simon Hughes: We shall return to the matter and I beg to ask leave to withdraw the amendment.
 The Chairman, being of the opinion that the principle of the clause and any matters arising therefrom had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause stand part of the Bill. 
 Question agreed to. 
 Clause 126 ordered to stand part of the Bill.

Clause 127 - Determining the seriousness of an offence

Humfrey Malins: I beg to move amendment No. 594, in
clause 127, page 73, line 37, after 'offence', insert 
 'and all the surrounding circumstances'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 533, in 
clause 127, page 73, line 37, leave out 
 ', or risk of harm,'.
 No. 595, in 
clause 127, page 73, line 38, at end insert 
 'and the effect on the victim'.

Humfrey Malins: We are discussing the determination of the seriousness of an offence. I do not like the wording of subsection (1); it would be more appropriate if it stated:
''In considering the seriousness of any offence, the court must consider''
 the circumstances of the offence and the offender and such other matters as it thinks fit. That is a much better phrase; it is completely nebulous. 
 The problem, which amendment No. 594 addresses, is that the clause may be too prescriptive in what the courts may consider in reaching a conclusion about the seriousness of an offence. I want to tease from the Minister exactly what is covered by subsection (1). As drafted, it requires the court to ''consider the offender's culpability'', which presumably means the blameworthiness of the defendant, and 
''the harm, or risk of harm, which the offence caused or was intended to cause.''
 Will the court be able to consider other factors and should it not consider other factors? 
 I wonder what sentence you, Mr. Illsley, and the Committee would impose in the following two examples. An old lady goes to a building society, withdraws her life savings of £3,000 and puts the money in her purse, which contains her late husband's wedding ring and her engagement ring. At a café, she puts the purse on the table, goes to get a cup of coffee and on her return finds that the purse containing 
 £3,000 and £2,000-worth of jewels has been stolen with no violence. Let us consider that in comparison with someone who is the treasurer of a social club of a big insurance company where 500 people pay £1 a month into a kitty for a social event at the end of the year, when there is £5,000 in the kitty. During the year, the treasurer, who is in a position of extreme trust, steals money from the account each month. 
 Both the treasurer and the man who stole the purse may come before the courts charged with theft. When sentencing either or both of them, the courts would have to consider the seriousness of each offence and might be drawn to subsection (1). In considering the seriousness of the offence, they would take account of the offender's culpability in committing the offence. If that is the blameworthiness of the defendants, there is nothing to choose between the two. Both might not have been in need and both might have been middle aged and of sound mind. Both would be equally to blame for nasty offences. 
 What about 
''the harm, or risk of harm, which the offence caused or was intended to cause''?
 There would be no difficulty in concluding that the harm caused to the old lady was much more grievous than that caused to the members of the insurance company—each of whom had lost a maximum of £10, which would not have troubled them for more than 15 minutes. The old lady who lost all would be grievously troubled for the rest of her life. If that is common ground, let us sentence them. 
 The guideline cases would suggest that if the man who stole from the insurance company were treasurer of the social club, he would deserve a custodial sentence. According to Barrick and other cases, betraying a position of trust is a grievous outside factor when it comes to sentencing. According to case law, people who abuse a position of trust go to prison and that is it. What about the man who stole the purse? There might a groundswell of opinion that such a person should go to prison. Perhaps he should, or perhaps that seems odd. 
 My point is that we should consider the wording of subsection (1)—the court has to consider whether an offence is serious. Never mind what the clause says later about cautions and spent convictions, or whether the person is in Honolulu or Honiton; that is another story and we shall consider it later. We are discussing the seriousness of the offence. The judge has to ask himself about the offenders' culpability. He might consider that they are both to blame, and he must consider the harm that the offence caused. It caused very little to the insurance company, but what do guideline cases say? 
 I am troubled by the narrowness of the clause. Are all the surrounding circumstances encompassed in the two phrases about culpability and harm? Does harm mean physical harm or mental or other harm? In the case of burglary, should one not consider whether it is a daytime or night-time offence? Irrespective of the culpability of the defendant and the harm caused, a burglary at night is more serious than one during the day. Nobody can challenge that. A burglary in a 
 remote area might be more troublesome, even though it has caused no more harm to anybody and there is no more culpability on the defendant's part, because it might send a stronger signal of gravity and aggravating factors. One would take into account the age and mental state of the defendant; any breach of trust; the poor man carrying out a theft as opposed to the rich one; theft as a result of need for drugs or through greed. The purpose of the amendment is to permit the court to consider all the circumstances so that it can take into account any factor that it likes in deciding the seriousness of an offence. 
 If the court is not to be permitted to take into account anything that it wants, there is a problem. If the Minister believes that taking into account culpability and harm is the same as saying that the court can take everything into account, let him say so. If he does not believe that, we should have some examples of what the court cannot take into account. That would be a question of the discretion of the judge. 
 Amendment No. 595 relates to the effect on the victim. The Minister might say that within the phrase 
''the harm, or risk of harm, which the offence caused''
 lies also the position of the victim. That might be a satisfactory answer, except that we live in a world where victims are taken into account when sentencing to such an extent that there is a victim impact statement in most bundles of papers. The judge can immediately see what the victim says and take it into account. Likewise, a great deal is now done to help victims at court.

Stephen Hesford: Is not the hon. Gentleman really arguing for a definition of culpability? The courts should be grown-up enough to work that out for themselves.

Humfrey Malins: That is my point. Why should a word such as ''culpability'' be used in the clause if the courts are grown-up enough to work out the position for themselves? Why not leave the courts no clause at all, because there are already far too many clauses in the Bill? If it is necessary to include a banal clause such as this that means nothing, but that satisfies those who drafted it, why not permit the court to take into account any circumstances it thinks fit, with particular reference to the circumstances of the offender and the offence?
 I am saying—laboriously, and I shall soon sit down—that I do not like a limit being placed on what the court can take into account. If the clause means that the court can take anything into account, then it would be nice to hear that that is the case—and the clause should say so more clearly. However, if the clause means that the court cannot do so, I should like to know which of the aspects that I have mentioned cannot be taken into account.

Hilary Benn: The clause concerns the court's ability to determine the seriousness of an offence. The two examples given by the hon. Gentleman were helpful because they illustrated the different harm that can be suffered by victims in different circumstances. The circumstances of the offence are important in considering aggravating or mitigating factors. I hope
 that I shall be able to offer the hon. Gentleman the reassurance that he seeks. Nothing in the clause prevents the court from taking into account the other considerations to which he alluded.
 Subsection (1) says that the court must consider 
''the offender's culpability in committing the offence and the harm, or risk of harm, which the offence caused or was intended to cause.''
 The sentencing principles set out in the clause are to guide the sentencer in reaching a decision on the seriousness of the offence. They require the court, when considering the seriousness of the offence, to consider the 
''harm, or risk of harm, which the offence caused or was intended to cause.''
 That relates to the second point raised by the hon. Gentleman. The victim is, of course, of primary importance. I hope that that reassures him that amendment No. 595 is not required. 
 Finally, the risk of harm that an offence may cause is a relevant consideration when determining the seriousness of an offence. An offence such as wounding with intent to cause grievous bodily harm is an example of where the risk of harm to the victim is potentially very great, even though the degree of harm caused may not have been that great. Clearly, that would be a relevant consideration in determining the seriousness of the sentence.

Paul Stinchcombe: I agree entirely that the risk of harm must be included in the case of arson, for example, which is inherently dangerous. I wonder, however, whether the language used is right. The clause does not read well. With respect to the risk of harm, the appropriate wording should be
''which the offence caused, or might foreseeably have caused''
 rather than ''intended to cause.''

Hilary Benn: I have learned in Committee that, on matters of grammar, it pays to give very close attention to the points that have been raised. I shall reflect on my hon. Friend's point.

Simon Hughes: It logically follows that if the subsection includes the phrase
''harm, or risk of harm'',
 it should refer to the possibility of an offence being caused rather than the intention. There would be inconsistency without the change suggested by the hon. Member for Wellingborough.

Humfrey Malins: I am a bit disappointed by the Minister's reply, though not by its tone. Perhaps I can repeat my point and ask a question—I hope that he will be prepared to answer it. Let us say that a judge was sentencing, with reference to subsection (1), the two persons whom I have described to him as defendants. In the breach of trust case, virtually no harm was done to anyone, whereas in the other case tremendous harm was done to the lady concerned. By what criteria or method should the judge reach the conclusion that the breach of trust cases, which have been set out in common law for many years, should be followed?

Hilary Benn: I do not see why the wording of clause 127 presents a difficulty. There will clearly be an interrelationship between the clause and the current guidelines, as well as the new guidelines that may emerge from the work of the Sentencing Guidelines Council. However, I said in my response—I am sorry if it was not sufficient to satisfy the hon. Gentleman—that the court and judge could of course take into account other factors. That is clearly what courts do, for example with regard to mitigating or aggravating circumstances.

Humfrey Malins: Perhaps I have misread the matter completely, in which case I am sorry. It must be stated somewhere that the court will take account of all sorts of factors, as the Minister has said.

Dominic Grieve: I agree with my hon. Friend; matters are not satisfactory. I can only assume that the Minister is saying that it is implicit in the prescriptive use of the word ''must'' in subsection (1) that other matters may be taken into account as well.

Humfrey Malins: In that case, I do not see why the clause should not state that the court can, in considering the seriousness of the offence, make up its mind about whatever it wants, whenever it wants to and provided that it wants to—and that if it does not want to, it need not. That would be a tremendously good clause. Although I am not happy, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Humfrey Malins: I beg to move amendment No. 596, in
clause 127, page 73, line 40, after 'convictions', insert 'or cautions'.

Eric Illsley: With this it will be convenient to discuss the following:
 Amendment No. 597, in 
clause 127, page 73, line 40, leave out 'must' and insert 'may'.
 Amendment No. 644, in 
clause 127, page 73, line 40, leave out 'must' and insert 
 'may, subject to subsection (2A),'.
 Amendment No. 534, in 
clause 127, page 74, line 1, leave out 'each previous conviction' and insert 'evidence of previous convictions'.
 Amendment No. 598, in 
clause 127, page 74, line 1, after 'conviction', insert 'except spent convictions'.
 Amendment No. 643, in 
clause 127, page 74, line 1, after 'conviction', insert 
 'for an offence committed by the offender when over the age of 18'.
 Amendment No. 645, in 
clause 127, page 74, line 6, at end insert— 
 '(2A) In considering the effect of previous convictions on the seriousness of the offence the court must have regard to the principle that the severity of the sentence must be proportionate to the seriousness of the current offence.'.
 Amendment No. 599, in 
clause 127, page 74, line 12, leave out subsections (5) and (6).
 Amendment No. 535, in 
clause 127, page 74, line 12, leave out subsection (5).
 Amendment No. 536, in 
clause 127, page 74, line 16, leave out subsection (6).

Humfrey Malins: Again, these are probing amendments. I do not want to detain the Minister for too long. Amendment No. 596 deals with the issue of the court taking into account previous convictions. Clearly, it is proper that the court should do that. It would be wrong if we ever reached the state of affairs—which we did, many years ago—in which previous convictions were not taken into account. What a mess that was. Previous convictions should be taken into account.
 The amendment would insert the words ''or cautions'' after ''convictions''. I do not know whether it should be accepted, but the Minister should know that whenever a defendant's antecedents are put before the court, they include cautions. Indeed, being cautioned—and I note the changes being made in the cautioning law—is effectively an admission of an offence, so that the person concerned has a bad character. If someone has a string of past cautions, should they be taken into account when the offence is considered? 
 Perhaps I may jump to amendment No. 598, for no other reason than that I have forgotten what the other one was. It would insert the words ''except spent convictions'' into the provision about treating a conviction as an aggravating factor. It probes the question whether a spent conviction should also be taken into account. I recently quoted from the directions on a person's good character that a judge currently gives to a jury. It is clear from case law that a judge can rule that a defendant should be treated as a man of good character, even though strictly speaking he is not because, for example, he has spent convictions. In such a case, the judge must give the full direction on good character to the jury. Will the Minister say whether spent convictions are part of the previous convictions that must be taken into account under subsection (2)? There is, of course, a saving grace for the court. That is a gentle probe on spent convictions and on cautions generally. 
 Amendment No. 597 would change ''must'' to ''may'' on the grounds that it may be tidier and give the judge slightly more discretion. Amendment No. 599 would leave out subsections (5) and (6). I hope that the Minister will confirm that we will discuss foreign convictions in due course. Will he say what he means by subsections (5) and (6)? There is obviously more to the matter than I can understand. Subsection (5) says that a probation order that was made more than 10 years ago and would otherwise not be a conviction is now to be treated as a conviction. I am not sure what that means. 
 Most courts consider people's records, some of which go back 20 or 30 years. Subsection (6) says that a conviction with an absolute discharge, which otherwise would not be a conviction, is to be treated as a conviction. This is so complicated, and I do not understand what it means. I would be grateful to any member of the Committee who could tell me what it means and why. I am pleased to see that several Government Back Benchers appear to share my uncertainty. 
 I hope that my amendments act as a peg for a thoroughly enjoyable and fruitful argument.

Simon Hughes: I shall start where the hon. Gentleman left off. Amendments Nos. 535 and 536 in my name and that of my hon. Friend the Member for Somerton and Frome (Mr. Heath) would have the same effect as the hon. Gentleman's amendment No. 599. The provision makes a conviction of something that had not been a conviction under previous legislation. We need to know which offences, including those that had led to an absolute or conditional discharge, will suddenly become live after they had been killed off, and why.
 This is an instance in which the helpful suggestion made by the hon. and learned Member for Redcar (Vera Baird), who is not in her place, does not work. The explanatory notes say nothing about the offences. In fact, they die at subsection (3); there is no comment on subsections (4), (5) and (6). That suggests that they are of minor importance or that the person who was writing the explanatory notes thought, ''I am not sure that I have time to work that out now.'' That is my first point. It is a minor one, but merits an explanation. 
 I will make my second point now so that I do not have to make it in the clause stand part debate. It relates to subsection (4), which makes relevant previous convictions in England, Scotland and Wales, but not those in Northern Ireland. That is illogical and inexplicable and I would be grateful to know why relevant offences in Northern Ireland suddenly do not apply, when if one happens to wait until one gets off the ferry in Scotland before committing them, they would apply. 
 There are two further issues raised by the amendments. Amendment No. 644 is effectively a pair with amendment No. 645. It is intended to ensure that the principle of proportionality is kept. The Minister successfully resisted accepting the proportionality argument in the previous debate. I can live with that, provided that he accepts that it should come in somewhere, and I am willing to accept that it would be better at this point. If we are to include the principle of just deserts or the punishment fitting the crime, let us include it here, as a Labour Back Bencher suggested this morning, because this is where the seriousness of the offence is dealt with. 
 Proportionality is important because there is a danger—one that has been spotted by others more eminent than me—that two things will happen if previous convictions are taken into account. According to the clause, when considering the seriousness of offences and previous convictions together, 
''the court must treat each previous conviction as an aggravating factor if . . . the court considers that it can reasonably be so treated''.
 The danger is that somebody will be punished a second time because they have been convicted for a previous offence. The first offence might not just be taken as an indication that someone has been through the courts before and has not been successfully ''treated'' by the punishment; it might also be an aggravating factor that makes it likely that the offence will be considered bigger. 
 More importantly, there might be a disproportionate outcome. I will provide three examples that I have been given of why the clause is badly and dangerously drafted. First, let us consider comments made by Judge Peter Jones in an article at the end of last year about the unaltered provision. In considering the Halliday provisions, he gave the example of a young man who has more than 50 convictions, mostly for theft from shops, and who pleads guilty to five more shop thefts of shampoo, deodorant and the like—stolen for resale to fund a drug habit. Does subsection (2), without our amendments, mean that that man should receive a more severe sentence every time, even though the actual offences are relatively low on the scale of seriousness established in subsection (1)? Do previous offences count for the purposes of ratcheting? The logical conclusion is yes, but, for proper sentencing, the answer should be no. A smaller, much later offence should not trigger a response that would be appropriate to a more severe recent offence. 
 The second question is whether the provision would prevent a court from imposing a community sentence, such as a drug treatment and testing order, in such a case. If the obligation is to regard recent and relevant convictions always as aggravating, does that prevent a court from trying to interrupt a cycle? Even if an offender has been to prison before, a new sort of community programme could become available or events could have occurred in an offender's life that mean that he is much more likely to respond positively.

David Cameron: I am trying to follow the hon. Gentleman's argument. Is he saying that if someone who has 50 previous convictions for a range of offences steals some shampoo, those previous convictions should not count at all when he is sentenced? Would it not be entirely reasonable for the law to say, ''When sentencing for the theft of shampoo, previous convictions should be taken into account as evidence of recidivism and therefore a lesser sentence should be given to someone who has nicked shampoo for the first time''?

Simon Hughes: I was with the hon. Gentleman until halfway through his intervention, but I did not agree with his conclusion. It is perfectly reasonable for a court to take into account all previous convictions and consider their frequency, the gaps between them and their seriousness, in order to judge what the sentence should be. It is not reasonable that the fact of previous convictions should automatically count as an aggravating factor; that is, that the last offence is sentenced more severely, irrespective of its relatively lesser nature. There must be flexibility.

Dominic Grieve: I understand the point that the hon. Gentleman makes, but I am not at all persuaded that that will be the impact of the Bill. Previous offences might be an aggravating feature of a further offence, but the Bill as drafted does not prevent exceptions for those circumstances in which no connection can be seen between a minor offence and previous more serious offences. However, that factor will still have to
 be taken into account, which is different from being acted on.

Simon Hughes: There is considerable debate between commentators and others about the proper interpretation of the clause. One interpretation says that previous offences should be taken into account, as has always been done, and that they should be weighed in sentencing, along with the person's other circumstances. That is fine. However, it is dangerous if previous offences automatically trigger a harsher sentence irrespective of the change of circumstances.

Stephen Hesford: What else can paragraphs (a) and (b) mean?

Simon Hughes: They refer to two matters: the nature and relevance to the present offence, and the time. They qualify the bold assertion that previous convictions automatically count as aggravating, and I agree that they are a balance. However, the previous offences might none the less not be discounted as aggravating the seriousness of the current offence. I would much prefer to go back to the old, more general principle that all the circumstances of the offence are taken into account.
 The next proposition, made in amendment No. 534, is that rather than having to weigh in the scales each previous conviction, the courts should receive the evidence of the previous criminal convictions as a whole and form a judgment on its relevance in the light of the present circumstances. The key question is about proportionality. If the clause is not so amended, the direct question for the Minister is whether it will be possible in every case for the court to give a sentence that is proportionate to the most recent offence, taking into account previous offences, but not regarding them as changing the obligations to have a proportionate response to the latest offence in the series.

Hilary Benn: The amendments would make a variety of changes to what should be defined as a previous conviction. We do not want to widen the clause so that cautions as well as previous convictions count as aggravating factors, for two reasons. First, if an offender has been cautioned in the past, but not convicted and sentenced, it could be argued that it would be unfair for the caution to act as an aggravating factor in future sentencing decisions. Secondly, on a practical level, if cautions were included, it could lead to a significant and unnecessary increase in the severity of sentences.

Humfrey Malins: The benefit of the doubt is to be given one way in cautions in the circumstances that we are discussing. How does that square with cautions being relevant to the definition of bad character being presented to the jury?

Hilary Benn: In the second circumstances, the history of cautions assists the jury. That is the Government's argument, and we have had that debate. I respect the hon. Gentleman's different view, but in those circumstances, we think that it assists the jury in relevant and appropriate circumstances, which we have debated at enormous length, in reaching a
 view on whether someone committed a particular offence. That is the fundamental difference.
 We do not want to exclude spent convictions. I realise that the relevant amendment was gently probing, as the hon. Member for Woking described it, and he acknowledged that subsection (2)(b) already provides for the court to have regard to the time that has lapsed since the conviction. As he also acknowledged, there will be circumstances in which it is not relevant, but depending on the nature of the offence for which the conviction is spent, it may be relevant. Therefore, it is appropriate for that provision to be retained. 
 It would also be unhelpful to replace the reference to ''previous convictions'' with one to ''evidence of previous convictions'', because the court needs to have a clear list of antecedents. Furthermore, I am not entirely sure what such ''evidence of previous convictions'' would consist of in the circumstances. 
 The clause is about moving away from the current position in which the court is required simply to ''take into account'' any previous convictions, to a position in which recent and relevant previous convictions must be treated as aggravating factors. I know that not every Committee member accepts that, but we do not want to water down that fundamental change by accepting the amendments. Persistent offenders need to know that they will be dealt with progressively more severely each time that they offend. That will not mean wildly disproportionate sentences, because the sentences will operate within the principle, which is established later in the Bill, that the severity of the resulting sentence should reflect the seriousness of the current offence. That should answer the question asked by the hon. Member for Southwark, North and Bermondsey. The clause simply modifies the proportionality principle so that previous relevant offences can act as an aggravating factor. 
 The clause will apply to all offenders, just as the clauses providing for the restrictions on imposing community and custodial sentences, which follow it, apply to both juveniles and adults. That replicates the provisions in the Powers of Criminal Courts (Sentencing) Act 2000, and it would be difficult to have separate principles for establishing sentence severity for juveniles and adults. We reject amendment No. 364 for that reason. 
 If the court thinks that an offence is too old or irrelevant, it can choose under subsection (2) to discount it. A probation order made before 1992, which would otherwise not be treated as a conviction, could well be relevant to a defendant's criminal history, and a court should have the power to include it in its consideration. Similarly, conditional and absolute discharges are both sentencing disposals and, for the purposes of the clause, should form part of the consideration. It may help to hon. Members to learn that subsections (5) and (6) are re-enactments of existing laws, and in so far as those who carefully weighed the wording in the previous laws agreed to them, who am I to judge on the sense that they made of it when they took that decision?

Humfrey Malins: The Minister may be teasing me and hoping that I fall into a little trap—it may have been a previous Conservative Government who enacted those provisions. An absolute discharge is the equivalent of the court imposing no punishment, because it was absurd that the defendant should have been taken to court. However, an absolute discharge can be dragged up X years later and taken into account, whereas a caution given two, three or four years ago cannot. The absolute discharge is so minor.

Hilary Benn: The hon. Gentleman will understand better than most the difference between a caution and an absolute discharge. The point that I was seeking to make—I did not intend to tease the hon. Gentleman—is that the Bill would enact and continue an existing provision in order to ensure clarity.

Humfrey Malins: Well, there we are. I understand what the Minister said, which is a good start. I understand why he said it, which is even better. I do not entirely accept his argument, but I did not expect to. I think, however, that I am slightly more satisfied with his response than I was earlier.

Lady Hermon: Before the hon. Gentleman commits himself too much to being satisfied with the Minister's response, may I ask whether he shares my concern that subsection (4) refers only to previous convictions by courts in Great Britain? Although I would like to pretend that no one in North Down has previous convictions, I cannot understand why convictions by courts in Great Britain should be taken into account, but not those by courts in Northern Ireland.

Humfrey Malins: I happen to know that the Minister has something to say on the matter. Before finally making up my mind whether to withdraw the amendment, it might be opportune to give him a chance to comment on the hon. Lady's intervention.

Hilary Benn: The point is dealt with in amendment No. 688, which we are shortly to debate.

Humfrey Malins: Indeed, it is. There is no point in wasting time. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Hilary Benn: I beg to move amendment No. 688, in
clause 127, page 74, line 10, leave out subsection (4) and insert— 
 '(4) Any reference in subsection (2) to a previous conviction is to be read as a reference to— 
 (a) a previous conviction by a court in the United Kingdom, or 
 (b) a previous finding of guilt in service disciplinary proceedings.''.

Eric Illsley: With this it will be convenient to discuss Government amendments Nos. 689 and 690.

Hilary Benn: The amendments are designed to ensure that relevant previous convictions from a service court or any other court in the United Kingdom—the answer to the point raised by the hon. Lady—may be taken into account for the purposes of determining the seriousness of the offence. Amendment No. 688 provides for previous convictions from a court in the UK or from service disciplinary proceedings to be taken into account. Amendment No. 689 provides that nothing in the
 clause should prohibit the court from taking into account any previous convictions by a court outside the UK—a point raised in an earlier debate—for the purpose of determining the seriousness of the offence. Amendment No. 690 provides for previous relevant convictions from any other court in the UK to be taken into account when determining the seriousness of the offence. It will therefore include Northern Ireland.

Dominic Grieve: I greatly welcome the amendments. They are plainly desirable, especially amendment No. 689, because it is common practice to refer to convictions in other jurisdictions, provided that the court thinks that such convictions are likely to have been reliable, and that will depend on its view of the foreign country's jurisdiction and system of justice.

Lady Hermon: I endorse the hon. Gentleman's remarks and I apologise to the Minister that I did not have the separate amendment sheet that makes specific reference to the UK, including Northern Ireland.

Humfrey Malins: What made the Minister change his mind between December 2002 when the Bill was introduced referring to ''courts in Great Britain'' and the latest amendment with ''courts worldwide''? Something must have happened to persuade him.

Hilary Benn: Our policy is one of continuous product improvement.
 Amendment agreed to. 
 Amendment made: No. 689, in 
clause 127, page 74, line 19, at end insert—''(7) Subsections (2) and (4) do not prevent the court from treating a previous conviction by a court outside the United Kingdom as an aggravating factor in any case where the court considers it appropriate to do so.''.—[Hilary Benn.]
 Clause 127, as amended, ordered to stand part of the Bill.

Clause 128 - Reduction in sentences for guilty pleas

Dominic Grieve: I beg to move amendment No. 604, in
clause 128, page 74, line 25, after ''guilty'', insert 
 ''or made a full admission to the police''.
 There is provision in this part of the Bill for reduction in sentences for guilty pleas. It is a well-established procedure that has been further refined in the Powers of Criminal Courts (Sentencing) Act 2000. There is, however, an issue that we should discuss. Under the clause, the earliest indication of an intention to plead guilty, and I assume that it must also work under 2000 Act, as it is worded in the same way, would be at the first appearance in the magistrates court. A person may vigorously deny an offence when interviewed by the police—indeed, he may tell a cock and bull story—but he may change his mind at the magistrates court and say that he intends to plead guilty at the first opportunity. Under the clause, he would receive the maximum discount for such a plea. However, his denial of the offence when interviewed by the police may have cost the investigating and prosecuting authority a great deal of time, trouble and 
 expense before his first appearance at the magistrates court. 
 My experience is that that happens frequently in health and safety at work cases. At first, there is huge denial before finally at prosecution stage someone will declare an intention to plead guilty at the earliest opportunity. Should we not differentiate between the person or corporation denying the offence when interviewed but pleading guilty at the earliest opportunity at court, and those admitting guilt at interview and giving the earliest possible indication of an intention to plead guilty when the case gets to court? I should have thought from a public policy point of view that it might be worth while favouring the person who does the latter rather than the former.

Paul Stinchcombe: I wonder why the hon. Gentleman does not think that the matter is already covered by subsection (1)(a), which tells us to take into account the stage of the proceedings at which the offender indicated his intention to plead guilty.

Dominic Grieve: That may be the case, but my reading of the clause does not suggest that it is. The proceedings are after charge, not before. Quite a lot of expense and time may have been spent before charge investigating the offence because of the denial of guilt. It is a minor point, but from a public policy angle, we should be giving every incentive to people to co-operate, admit guilt and enter a plea of guilty at the earliest opportunity. If that means differentiating by a further category those who do not co-operate, but give such an indication when brought to court, it might be worth doing.

Hilary Benn: I am still trying to reflect on the hon. Gentleman's point. Since subsection (1)(a) refers to the stage in the proceedings, I am not clear on the implication of his amendment. The issue that he raises is difficult, but I entirely understand the sentiment behind it.

Dominic Grieve: I wanted to acknowledge that, as worded, the amendment does present a difficulty, because it would not achieve the desired result. I shall not go into details, but I think that the Minister understands what I am trying to get at.

Hilary Benn: I am glad that the hon. Gentleman thinks that I have understood what he is trying to get at. If one were to add the provision, the first question that arises is whether there would be consideration of a greater discount if an admission was made to the police, as opposed to entering a plea of guilty when the case comes to court. If that is the intention, it raises an issue about those deciding to plead guilty after having the benefit of legal advice. That stage may not come until after they have had a conversation with the police. One would have to be slightly careful that one did not end up with a perverse incentive. I am concerned about his proposal for that reason. I also wonder whether the fine gradations in question would be worth the effort.

Humfrey Malins: I see the problem. I do not think that the amendment is perfectly worded. My hon. Friend seeks to give greater credit to someone—a street
 robber, for example—who says, ''Okay, I did it,'' immediately after the police pick him up. Someone who immediately confesses involvement ought to get some extra credit from the judge later in the proceedings, as opposed to someone who does not plead until he gets to court. I appreciate the difficulty with the wording, though.

Simon Hughes: Let me add two thoughts in support of the general proposition. First, people effectively face such circumstances in the world of motoring offences, with fixed penalty notices and so on. One gets 14 days, within which, if one pays, one is able to pay at a reduced rate. If one contests the penalty, one risks the higher rate, and further penalties.
 There is also an issue prompted by the point that concerns the summary, and non-summary, offence time limits. At the moment, one cannot charge someone for an offence that can be tried only in a magistrates court, unless they are charged within six months. I shall give as an example the case of a constituent who came to me claiming that his employer was in breach of health and safety legislation in a car scrapyard and did not have insurance covering employer's liability. It is an offence not to have employer's liability insurance, but it is a summary offence that can be prosecuted only in a magistrates court, so if the investigations are not completed in time, it cannot be prosecuted at all. 
 This provision seems to be about ensuring that we give people incentives to accept their guilt in time and do not impose artificial barriers if investigations take longer, and that such a period should run from the time when the charge is put. I ask the Minister to consider the related, but separate, issue of the time limits for charging offences that are triable summarily only. Sometimes, injustice is clearly done in court in matters of significant public policy.

Graham Allen: Is it possible for a smart-aleck lawyer—I know that such people are a small minority—to see how a case goes in terms of charges being dropped and other offences being tried and then, at an appropriate point, to get his client to plead guilty, with the result that, effectively, he gets off because the sentence for the guilty plea is such that it is below the threshold for him to be committed to a young offenders institution or prison? Will the Minister take into account the repercussions in terms of the public perception of the credibility of the criminal justice system when an offender can plead in that way? I am thinking of somebody who is 17 years old and has committed 115 offences that have gone to court.

Hilary Benn: The last point ranges slightly wider than the provisions of the clause. I see difficulties in the operation of the clause, but I should like to write to the hon. Gentlemen who have raised specific points. I do not know the answer to question posed by the hon. Member for Southwark, North and Bermondsey but I shall find out and respond. On the other points, I remain principally concerned about disadvantaging certain defendants. Some people have access to legal advice in time to understand the implications of pleading guilty or otherwise. They can decide whether to say to the police ''Okay, I did it,'' or to enter an early guilty plea before the court. Others
 might receive advice in insufficient time to have a choice about how and when to plead.

Graham Allen: I apologise to the Minister. In order to be fair to him, perhaps I could turn the tables and write to him with an explanation of the case. Then he can undertake, as he always does, to respond to that.

Hilary Benn: Who could resist such an invitation?

Dominic Grieve: I am grateful to the Minister for agreeing to consider the matter further. It is not entirely without difficulty, and I understand that he does not want to be unfair to somebody who is waiting for legal advice. My concern is the other way round. I can envisage circumstances in which the wording of clause 128 would be used by a lawyer to argue on behalf of his client that he should receive the maximum discount, even though he was wholly unco-operative with police inquiries and availed himself of the opportunity to indicate guilt only when proceedings began. That could lead to substantial extra public expenditure.
 Such a case could be clearly differentiated in the mind of any sensible person from that of someone who the moment he is arrested or surrenders himself at the police station says, ''Look, I did this. I am very sorry and, of course, I shall plead guilty,'' is then charged, goes to magistrates court and gives an indication of plea immediately. I do not know how the previous rules operated, but clause 128 may cause problems. One can logically differentiate between the two examples that I have given.

Simon Hughes: We must also consider the need to reduce significantly the trauma to victims and witnesses who might have to give many more statements and be interviewed much more often if there was a delay before someone pleaded guilty in the expectation that they would be rewarded, or not penalised. Therefore, not just cost and time would be saved, but trauma and aggravation as well.

Dominic Grieve: I agree with the hon. Gentleman entirely. Against that, the Minister may go away and conclude that the discretion in clause 128 is sufficient for judges to differentiate between the two situations. However, a problem with setting out rules in statutory form is that lawyers use them in court ad nauseam as a justification for their client receiving the maximum discount in particular circumstances. I would be grateful if the Minister considered the matter. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Simon Hughes: I wish to raise with the Minister a policy issue that was touched on by the hon. Member for Nottingham, North. I very much favour clear rules that connect an early plea with a potential sentence discount. I have always been uncomfortable with plea bargaining arrangements, particularly those to which the hon. Gentleman referred, in which a charge for a more substantial offence is dropped as the trial nears in exchange for the accused pleading guilty to a lesser
 offence only to walk away after conviction on a charge that, in the public eye, falls far short of appropriate.
 Two aspects must be considered. First, no charges should have been made until the Crown Prosecution Service was of the view that it was in the public interest to charge and there was a more than 50 per cent. chance of a conviction. Secondly, I am aware that a change of practice is intended whereby charges will be brought only after the CPS has been involved in the process. It is hoped that the police will not make the mistake at the beginning of overcharging, which results in cases that cannot be backed up by the evidence. 
 I am also aware that cases that look good on day one may look less good on day 101. Obvious examples are a key witness who is well on day one but ill on day 101, or who is compos mentis on day one but not particularly compos mentis by day 101. Thus, the strength of a prosecution case could diminish. 
 I would be grateful for an indication from the Minister as to whether it is Government policy that the legislation will effectively do away with the process that leaves plea bargaining and charge disappearance to negotiation. Furthermore, can we expect the police charge laid at the beginning, on the advice of the CPS, to be the one that goes to court, so that the defendant will know what he will be convicted of if he pleads guilty and does not think that by spinning it out he will be convicted of a lesser offence? 
 The case may be made that it is in the public interest to secure many more guilty pleas to lesser offences—I am aware of marginal cases, such as section 18 and section 20 wounding cases, where the most serious wounding is a very serious offence and lesser wounding a lesser offence—but the public feel aggrieved when criminals are seen as getting off too lightly. I have a constituency case, and have had them in the past, where people are worried that the charge will be inappropriate to the circumstances. A plea is being negotiated for a lesser charge that will allow everyone to go home ''comfortably''. No one has had a chance to argue that this was an attempted murder, for example, which should, if proven, result in an appropriate sentence.

Hilary Benn: The hon. Gentleman raises an important point with some bearing on the clause, though he ranges more widely. He partly answered his own question. Self-evidently, a range of considerations must be taken into account and he referred to circumstances in which everyone can go home, but sometimes sparing a witness or a victim from having to give evidence is the right thing for justice and genuinely in everybody's interest. The change in charging arrangements should ensure that more groundwork is done, making the charges better prepared and more likely to stick.
 Question put and agreed to. 
 Clause 128 ordered to stand part of the Bill.

Clause 129 - Increase in sentences for racial or religious aggravation

Dominic Grieve: I beg to move amendment No.605, in
clause 129, page 74, line 38, leave out from first 'factor' to 'and' in line 39.
 This is a simple matter. Lawyers are fond of saying that words are ''otiose'' or ''surplusage''. In subsection (2)(a), the term 
''(that is to say, a factor that increases the seriousness of the offence)''
 is otiose. I know of no reason why it is there.

Hilary Benn: I am genuinely grateful to the hon. Gentleman for two reasons. First, he has introduced me to the word ''surplusage'', which I had never encountered, and, secondly, because his amendment makes a good point. I ask the Committee to accept it.
 Amendment agreed to. 
 Question proposed, That the clause, as amended, stand part of the Bill.

Simon Hughes: I was just reflecting on the success of the hon. Member for Beaconsfield and I recall the hon. Member for Woking saying that the Bill has far too many clauses. To make more progress, perhaps we should continue looking for further provisions that can be removed.
 I would be grateful for clarification of the application of the Crime and Disorder Act 1998 in subsections (1) and (3). As the Minister knows, the clause applies other than where that Act applies. Why are the other offences 
''racially or religiously aggravated assaults, criminal damage, public order offences and harassment''
 excluded from the general application? I probably know the answer, but it would be helpful to have it on the record.

Lady Hermon: If someone of religion A burgles the house of someone else of religion A, is that a religiously motivated burglary? Does the clause depend on the offender's religion or race rather than the victim's?

Simon Hughes: My understanding is that the clause would not apply in the hon. Lady's example, because it is not intended to apply to people in the same category. The answer to her second question is that the clause is intended to reflect the nature of the victim and, therefore, that an aggravated sentence would be passed on someone who committed an offence due to the victim's race or religion. Logically, they could be of the same faith or race, but in practice they will be of a different faith or race.
 I have another question for the Minister, although I did not table an amendment on the issue, as I was properly advised that it would be complicated to do so at this point. I favour aggravated sentences for religious or racial offences, and those are perfectly reasonable social policy given that such attacks are particularly obnoxious. However, three other obvious categories of attack based on prejudice have come up in previous legislation—those carried out on the basis 
 of disability, gender or sexual orientation. Has consideration been given to such aggravating factors and, therefore, to whether an aggravated sentence should apply where a person with an obsession beats up someone who is disabled, female or of a particular sexual orientation?

Lady Hermon: The hon. Gentleman suggests that we should widen the scope of the clause to cover women and the disabled. The 1998 Act created offences of racially aggravated assault, criminal damage and harassment. Under the clause, however, offenders will not be charged with such offences, and the court will take prejudices into account during the case only as aggravating factors. Surely, he should be arguing for the creation of offences of aggravated assault against the disabled and women.

Simon Hughes: I understand the question, and it is difficult to decide whether the racial or religious element should be a separate offence or an aggravating factor. I remember the debates on the 1998 Act, and I found it difficult to come to a conclusion on the best legislative way forward. My instinct is that it is better to see such elements as aggravating factors. When a court hears about a gang attack, evidence might emerge showing that it happened because of the victim's race or religion—that might be the case in Northern Ireland and elsewhere. The court might add another year's imprisonment to the sentence as the assault was the result of prejudice and completely unjustified, not just a straightforward fight outside the pub.
 During the debates on the 1998 Act, the Labour Administration took the social policy decision that racial attacks were so serious that separate offences should be created. I honestly have not analysed whether that approach has worked well, but I know that we must counter racial attacks and, indeed, all crimes that are precipitated by prejudice—the crimes in the categories we are discussing. I am troubled by the fact that we are putting into one category prejudices against those who are Sikhs or who are black, but that we are not registering the fact that people can suffer terrible crimes because they have a disability or because they are gay or female.

Lady Hermon: The hon. Gentleman has mentioned Northern Ireland where, in the 1980s, we put the prevention of incitement to religious hatred on the statue book and made it an offence because we were confident that that would deal with the horrible sectarian attacks. It simply did not work and there was not even a successful prosecution.

Simon Hughes: That is highly relevant for two reasons. In England and Wales, incitement to racial hatred is an offence but there are few prosecutions. In the Met area, in the years for which I have seen figures, there were three prosecutions in one year and fewer than 10 in the previous year. If that offence was intended to deal with people such as supporters of the British National party or the National Front who go round the streets shouting racist slogans or who put racist newspapers through people's doors, there have
 been far too few prosecutions. I have been trying to wind up the police to prosecute more often.
 I am also conscious that the debate is live in Scotland in the context of sectarian issues. The Administration have been thinking about legislation to deal with sectarian offences in Scotland, particularly those arising from football-related rivalry in Glasgow. I bow to the hon. Lady's experience of Northern Ireland, which may provide a helpful and relevant lesson for us. I am not pretending that I know the answer, but if we are seeking to have aggravated offences in one category and separate offences of racially aggravated crime in another and no offences if the aggravating consideration is not race or religion, we are not being consistent. I should be grateful for a considered reflection by the Minister. I would hope that we can get things right by using the Committee's experience to agree rather than having differences.

Dominic Grieve: I hope that the Minister will forgive me if I make a serious point about the clause. The way in which the clause is worded makes it prescriptive that if an offence is religiously aggravated, from which I would infer that it was done on the basis of the hatred of a religion, the motivation ''must'' be taken as an aggravating factor.
 I understand the intention behind the clause, but let us consider an example: a group of people are fired by the catalogue preamble by the Prime Minister to an Aztec exhibition, which says that the exhibition illustrates vibrant cultural diversity, and decide to set up the Aztec religion in this country. Having set up their temple, they say that they will be seeking a change in the law as soon as possible to allow human sacrifice to take place on a large scale—in the meanwhile they will obey the law, but that is their intention. Other people in the same community who feel extremely angry about human sacrifice burn the temple down, beat up the adherents of the sect and end up in court. 
 Must the circumstances be treated as an aggravating factor and can the views of the sect be treated as a mitigating factor? I hope that the Minister will excuse my using so extreme an example, but with the developing cultural diversity in this country such examples are not be impossible. My concern is not with treating as an aggravating factor an offence that is motivated by hostility to a religion, but the use of the word ''must''. I can foresee circumstances in which serious problems would be caused because members of the public might say that, in their opinion, an offence was not aggravated because there were mitigating circumstances. Some offences can cause someone to incur deep public hostility in the community by behaving in a way generally considered outrageous, but are found to have mitigating factors when the perpetrator comes before the courts. 
 I hope that the Minister will excuse me, but I think that I have a point here. I have illustrated it fairly frivolously but I have a horrible feeling that the ideas that I come up with are sometimes closer to the truth in the society around us than I have realised. I think that my point should be considered.

David Cameron: I shall try to help my hon. Friend to come up with an example slightly closer to the ground. The Scientologists can be quite aggressive if someone criticises or questions their religion in any way. I once worked for Carlton and questioned them about their religion for a television programme. If they tried to occupy one's premises, and if one broke the law in moving them, they could, I suppose, claim that that was a religiously aggravated offence. However, there might be seen to be mitigating factors. Is that closer to what my hon. Friend was suggesting?

Dominic Grieve: My hon. Friend gives a good example. Another example might be a dispute between two religions over who is the occupier of a place of worship. That happens in India and has happened in Israel and Palestine. One group is in occupation and another group uses force to evict the first group. Such a case might depend on legal ownership, but one can certainly see that the issue could become quite complex. It does not bother me at all; I welcome the fact that, ordinarily, if one underlying reason behind an attack on another person is dislike of their religious beliefs, that should be an aggravating feature. However, the use of the word ''must'' could cause courts some problems.

Hilary Benn: The clause re-enacts a current provision in the Powers of Criminal Courts (Sentencing) Act 2000. Section 153 of that Act provides that, except for certain offences, courts should treat a racially or religiously aggravated offence as an aggravating factor. Section 28 of the Crime and Disorder Act 1998 provides a definition of such an offence and sections 29 to 32 create a series of racially aggravated offences, such as racially aggravated assault, which are excluded from the provisions of the clause because they are, by definition, aggravated offences already. That answers the first point made by the hon. Member for Southwark, North and Bermondsey.
 On the hon. Gentleman's second point, I am aware of the debate on other forms of motivated offending. He asked directly whether the Government were considering change in that context through the Bill; we are not. Clause 129 is merely a re-enactment, following the logic of what has already been done in the 1998 Act, to ensure that racial and religious aggravation are taken into account in determining the seriousness of an offence for the purposes of this part of the Bill. 
 The hon. Member for Beaconsfield raised an interesting although extreme example. I would not want to mislead the Committee but, in general, religion will be taken to refer to established religions. I am not sure how that would be defined in the example that he gave.

Dominic Grieve: I may be wrong, but I recollect that the authorities say that a religion is the worship of a deity. I shall have to look it up, but I have distinct memories that the definition is couched in a way that if people decide that Quetzalcoatl is the god whom they should worship, and they meet regularly for that purpose, they would be described as a religious group. That is the reality under current law. The Minister may wish to consider the definition of a religion because it is an
 interesting point. I hope that it remains abstruse, although it could turn out to be a real point at some stage.

Hilary Benn: I could do no better than to take up the hon. Gentleman's offer.

Simon Hughes: Let me push the Minister one step further. He said that he is re-enacting legislation that we passed a couple of years ago. Can he say whether it is Government policy—somewhere and somewhere soon—to bring legislation for other hate crimes into line with that for hate crimes based on religion and race? I understood that it was, and I hope that it is. What stage has the Minister reached, and why could such a provision not be included in the Bill?

Hilary Benn: As I have undertaken to respond to points that two other hon. Members have raised, I hope the hon. Gentleman will accept that same communication in response to his final question.
 Question put and agreed to. 
 Clause 129, as amended, ordered to stand part of the Bill.

Clause 130 - Meaning of ''community sentence'' etc.

Question proposed, That the clause stand part of the Bill.

Humfrey Malins: I have a few questions for the Minister. I do not expect him to respond to them now. However, I would be grateful if he would answer them in writing.
 The clause defines what constitutes a community sentence. Many more such sentences now exist than did formerly. Subsection (1)(a) directs us to clause 160 to obtain a fuller definition of a community order. Clause 160 lists in the relevant paragraphs the orders that are community orders. I hope that I have not confused myself and failed to understand the difference between a community sentence and a 
 community order. I understand clause 130 to say what a community sentence is. Some examples of it are given in clause 160(1). 
 However, several other orders are available to the courts. I ask the Minister to comment in a letter on whether those are community sentences or community orders. First, there is a drug abstinence order, which I understand to differ from a drug treating and testing order. The drug abstinence order is being piloted, so not many have yet been made. Secondly, there is an antisocial behaviour order. Can the Minister confirm that any court, after a person has been convicted of any offence, may make an antisocial behaviour order? I understand that to be the case, as somebody who ought to know told me that recently. I may be wrong, but I am sure that there is something in that. 
 Thirdly, there is the issue of the travel restriction order. The Minister will be familiar with that as it came into force under the Criminal Justice and Police Act 2001. However, the world at large is not familiar with travel restrictions orders, as none has been made by the courts since they came into force. Fourthly, there is the exclusion order, whereby an offender can be prohibited from entering a place specified in the order for six months. I do not think that such an order is yet in force. I wish to know when it will be, and whether it amounts to a community sentence. Finally, a restraining order for sexual offenders has been in force for 19 months and a disqualification order came into force on 11 January 2001. 
 These are some examples of the many different sorts of order that are now at large. It would be helpful to learn from the Minister in writing which orders, if any, carry community sentences. If they do not carry community sentences, I wish to know why. 
 Debate adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at fifteen minutes past Five o'clock till Tuesday 4 February at ten minutes past Nine o'clock.